Personnel Series – Background Checks

This blog post is the third in our series of posts on Spring Personnel Decisions and will address background screening procedures. Similar to our previous posts in this series, we will address both legal requirements and best practices when developing background procedures in your district.

As you are likely aware, under § 168.133, RSMo., Missouri school districts are required to screen all employees authorized to have contact with students, including bus drivers, before employees actually have contact with students.

Specifically, searches of the following databases are required under § 168.133, RSMo.:

  • The Federal Bureau of Investigation’s (FBI) criminal history files;
  • The Missouri State Highway Patrol’s (MSHP) criminal history database and sexual offender registry;
  • The Family Care Safety Registry (FCSR) or the central registry of child abuse and neglect of the Children’s Division (CD) of the Department of Social Services; and
  • Missouri Case.net.

 

A district should only hire individuals whose background screenings are “satisfactory to the district;” however, what is “satisfactory” can be a bit tricky to determine. The guidelines a district develops for excluding potential employees from positions based on their criminal histories will generally depend on what suits that particular district and community best; however, there are a few instances that would definitely withstand scrutiny if an applicant were to challenge the District’s decision to remove him or her from the running to fill a position based on criminal history.

Specifically, the District would have a strong argument that excluding an applicant based on the fact they have committed one of the following crimes would be in the District’s and its students’ best interest:

  • Crimes where a conviction limits ability to be near school property under State law (incest, endangering the welfare of a child in the first degree, use of a child in a sexual performance, promoting a sexual performance by a child,  sexual exploitation of a minor, promoting child pornography, and furnishing pornographic material to minors).
  • Sex offenses, regardless of whether they took place in Missouri, including any offense that requires registration as a sex offender.
  • Any other offense where the applicant was over 18 and a child under 17 years of age was the victim.
  • Any violent or forcible felony (murder, manslaughter, first or second degree assault, robbery, first degree arson), or
    • Any felony weapons offense (armed criminal action, felony unlawful use of a weapon), or
    • Manufacturing, distribution, delivery of controlled substance,
    • If the crime was committed within the last 10 years, or at any time if the person also has a recent conviction within the last two years for something other than minor traffic offenses.
  • Any other felony within the last five years.
  • Misdemeanor assault.
  • More than three convictions for offenses other than minor traffic violations.

 

When creating guidelines for applicants who have committed crimes other than those listed above, though, the District’s main considerations should be:

  • What is the type of criminal record (pending, charge, arrest, conviction, and it is a drug-related, violent or theft-related crime)?
  • What is the severity of the offense and the punishment (e.g. misdemeanor or felony; and did they receive a fine, probation, or imprisonment)?
  • What type of job is the person to perform for the District?
  • How long ago did the crime occur?

 

With these considerations in mind, we wouldn’t recommend that the District create bright-line rules in its processes because each applicant’s specific situation will be different. For instance, using a set, minimum number of years for writing off or accepting a conviction—for example, a bright line rule such as, “A felony over 15 years does not apply”—wouldn’t be appropriate. Instead, our advice would be to evaluate on a case-by-case basis whether a conviction or crime is of such severity to warrant the applicant to be excluded. Someone with a drug past, for example, should likely not be employed around kids, but a person with a felony but for a financial crime is not necessarily excluded if they’re not going to have access to the building’s computers, invoicing, accounts, etc. Misdemeanors or traffic-related crimes (felony DUIs, for example) also do not tend to demonstrate that the person should be excluded automatically, but it is tough to make a generality across the board because the District should still consider the type of crime itself and its relationship to the applicant’s potential job duties when determining whether to exclude the applicant.

Regardless of what is included in your district’s guidelines, though, the district needs to be sure that the guidelines are applied consistently and that there is a link between the specific criminal conduct the applicant committed and the duties of the position they’re applying to fill. This will mitigate the risk that applicants will file successful discrimination claims against the district if they’re excluded based on their criminal history.

It’s also important to remember that generally, any exclusion should be based on a conviction rather than an arrest alone, to ensure the individual was either found guilty of or pled guilty to the crime. If you receive a background screening that doesn’t include information regarding how the charge was disposed of, we recommend following up on either Case.net or with local law enforcement to determine the outcome because criminal history records can sometimes fail to include that information.

Your district’s background screening process should also include a sort of informal “appeal process” that will allow the applicant to explain their criminal history if they’re being excluded from consideration for employment because of it. This “individualized assessment,” which is required by the Equal Employment Opportunity Commission (EEOC), should include giving the applicant notice that they have been screened out of the running for the position because of a criminal conviction and the opportunity to give reasoning why their criminal history shouldn’t prevent them from being employed. Then, based on the information the applicant shares, the District should consider whether the applicant’s explanation or discussion warrants an exception.

Also, although the law requires these screenings of employees only, it is a good idea to complete screenings of volunteers who will be left alone with students, and to require district contractors screen their employees if they will work on district property to fully ensure students are protected at all times when they’re on campus.

In 2016, the MSHP, with input from the Missouri Department of Elementary and Secondary Education, developed the Rap Back program, which sends districts an electronic notification when an employee has been arrested in Missouri. There is a similar program available federally as well. These programs provide a sort of “ongoing background check” of a district’s employees, but only with regard to arrests—they don’t provide districts notifications of convictions or ultimate dispositions of crimes.

If your district receives a notification that an employee has been arrested of a crime, additional follow-up will be necessary to determine whether the employee is convicted of or pleads guilty to the crime once he or she is actually charged. Participation in the Missouri and National Rap Back programs is voluntary. The District may require any employee to submit to additional background checks, rerun background checks, or participate in state or federal RAP back programs at District expense. Also, the District may update criminal background checks as often as the superintendent determines is appropriate.

If you have any questions about background screenings or if you would like assistance drafting your own background screening procedures, any of our team members at EdCounsel would be happy to help!